As an employee working in the state of New Jersey, you’ve no doubt heard co-workers, friends, or family members mention “family leave” or the “family medical leave law.” These sentences refer to two separate laws that benefit many people who work in this state: the Family Medical Leave Act (“FMLA”), which is a federal law, and the New Jersey Family Leave Act (“NJFLA” ), which you probably assumed is a state law. Essentially, these laws provide periods of unpaid leave during which a qualified employee’s job is protected, as well as certain benefits. For non-military employees, an employee may be entitled to a benefit of 12 weeks of unpaid leave in a 12-month period under the FMLA and 12 weeks of unpaid leave in a 24-month period under the NJFLA . The concept under both laws is to place an employee in the same job position after family leave expires.
On the surface, these laws appear relatively straightforward with respect to the benefits provided. In practice, however, issues such as whether a particular employee is entitled to leave, the calculation of the leave period, and the concurrent execution of leave periods under FMLA and NJFLA frequently arise. Given the not-so-obvious pitfalls surrounding the enforcement of these laws, employers often simply don’t know the law or, worse yet, incorrectly believe they fully understand the intricacies of leave laws, leading to misapplication. of the law.
In general, the FMLA and NJFLA apply to all private employers with 50 or more employees and all public and government agencies, regardless of the number of employees. However, even the basic task of accounting for the number of employees working for a private employer is complicated by provisions in leave laws that increase the number of employees attributed to an employer if management, ownership and control is shown to exist. common to an employer. subsidiary, division or entity related to the particular employer.
To be eligible for FMLA leave, an employee must have worked for a specified employer for a minimum of 12 months and worked 1,250 base hours in the 12 months prior to the leave. Compare the NJFLA, which requires the same 12-month employment period, but reduces the base hour requirement to 1,000 hours in the prior 12 months for leave eligibility. Calculating eligibility isn’t always what it seems, either: The minimum 12-month work period for an employer doesn’t have to be consecutive months of employment and includes partial weeks worked, sick leave, vacation, and other paid time off. Compare the base hour requirement, which does not include vacation, sick or other personal leave, to this requirement.
Under FMLA and NJFLA, leave is available to eligible employees for the birth or adoption of a child and to care for the serious medical condition of a close family member (usually a parent, spouse, or child). Unlike the NJFLA, the FMLA extends leave to cover the employee’s own serious medical condition. A serious medical condition is generally defined as a physical or medical illness, injury, impairment, or condition, which requires hospital care or ongoing treatment by a health care provider. Issues triggered by the definition of a serious medical condition include the overlap with protecting an employee’s privacy in their medical records and the permitted communications an employer may have with an employee’s medical professionals. In addition, in certain circumstances, cosmetic or elective surgery may qualify as a serious medical condition, as well as treatment for alcohol or substance abuse, as distinguished from absences caused by the use of alcohol or drugs.
Because leave under FMLA and NJFLA may cover the same event, concurrent leave under both laws must often be determined. For example, a person injured on the job who is unable to work for 12 weeks due to their own disability would exhaust the 12 weeks of unpaid FMLA leave. If, on the last day of the employee’s leave, the employee’s spouse is seriously injured in an automobile accident, the employee is entitled to 12 weeks of unpaid leave under the NJFLA. In contrast, however, a situation where an employee must care for a child for a serious medical condition and the 12 weeks of unpaid leave under FMLA and NJFLA would run at the same time.
Another frequently occurring issue is whether an employer can force an employee to use paid leave time at the same time as the unpaid leave provided by FMLA and NJFLA. The short answer is yes: an employer can require you to take paid time off, that is, sick and vacation time during your leave without pay. The principle here is that an employer should follow its prior practice regarding the exhaustion of all increased paid leave during a leave of absence. In other words, the employer’s practice must be consistent for the purposes of leave law with its policy on the use of paid time off during other periods of unpaid leave.
For both employees and employers, the FMLA and NJFLA raise difficult legal and factual questions. The risk for employers who mistakenly deny an employee leave is litigation and potentially significant monetary penalties. The risk to employees who do not properly follow the leave law guidelines is the loss of much-needed time off and termination of employment. For these reasons, it is imperative that employers and employees consult with a legal professional about FMLA and NJFLA.